Nestled among a string of improbable victories President Barack Obama racked up in the lame-duck Congressional session is legislation containing the most debilitating setback to date to his plan to close the military prison at Guantanamo Bay and send many of its detainees to trials in civilian courts in the U.S.
Language contained in the 2011 National Defense Authorization Act passed by the House and Senate on Wednesday bars the use of Pentagon funds to transfer any Guantanamo prisoner to the U.S. for any reason, including a trial. Some supporters of plan Obama announced on his first full day in office to close the prison said the passage of the legislation signals near-complete capitulation by the president.
"Obama's original plan is in shambles," said David Remes, an attorney for 14 Yemeni detainees at Guantanamo. "From the outside it appears to be in shambles because he was never sufficiently committed to the success of his own plan and, as a result, Republicans were able to mobilize to turn the issue against him and he provided the Congressional Democrats no leadership."
For about a year, senior national security officials have struggled with the issue of whether to try alleged September 11 plotters like Khalid Sheikh Mohammed in a military commission or a civilian court--and, if so, where. The new legislation seeks to short-circuit that process by leaving military commissions as the only trial option. Other new requirements in the legislation could slow or stop transfers from Guantanamo to other countries.
In recent days, Attorney General Eric Holder warned that the limits could violate the Constitution by intruding on the Executive Branch's right to make decisions about where prosecutions should be brought. However, the White House has pointedly refused to say whether Obama's objection to the Gitmo provisions is so strong that he would veto the entire defense measure.
"I don't think he's likely to veto it, though I'd be pleasantly surprised if he did," said Laura Murphy of the American Civil Liberties Union, which opposes the limits on trials and transfers. "There's just too much at stake in the bill itself, which goes to the war effort and Defense Department funding."
The precise origins of the Guantanamo language in the defense bill are murky. Some Republicans in Congress have been pushing a flat-out ban on transfers to the U.S. for more than a year. That type of provision first passed the House in an early version of the defense bill in May.
However, in recent weeks, similar Guantanamo restrictions began appearing in versions of defense bills, omnibus budget legislation, and stopgap spending measures proposed by Democratic leaders. New Sen. Mark Kirk (R-Ill.) said he was insisting on an airtight ban in order to be assured that an Illinois state prison the Obama Administration wanted to buy to house Guantanamo prisoners would only be used for ordinary convicts if the feds acquire it.
Sen. Dick Durbin (D-Ill.), one of Obama's most loyal allies on Guantanamo and detainee issues, said the restrictions were simply an acknowledgement of the lack of support in Congress for Obama's approach.
"I think it's necessary to include the language," Durbin said. "I supported the president's position on [the Illinois prison] initially -- that issue has been resolved politically, and this bill, the language in it, reflects the political reality."
"On the Republican side, you have the politics of fear, and on the Democratic side you have a fear of politics," said Tom Malinowski of Human Rights Watch.
During a press conference Wednesday, Obama reiterated his support for closing Guantanamo. However, he did not say, and was not asked, what he planned to do about the legislation on his desk that would make it more difficult--if not impossible--to do that.
"Obviously, we haven't gotten it closed," Obama acknowledged. "Despite not having closed Guantanamo, we've been trying to put our battle against terrorists within a legal structure that is consistent with our history of the rule of law. And we've succeeded on a number of fronts," he asserted.
Obama said he had no complaint with how Guantanamo is being run now, but that its history has made it a recruiting tool for Al Qaeda. "I think we can do just as good of a job housing them somewhere else," he said.
While Congressional Republicans and some Democrats have repeatedly backed measures to keep the 174 remaining Guantanamo prisoners put, some conservative Republican lawyers have expressed concerns that the legislative technique used in the current defense bill is ill-considered and unconstitutional.
"One bad idea does not excuse another," former Justice Department lawyers David Rivkin and Lee Casey wrote in a Wall Street Journal op-ed Monday. "This is a step too far. The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress's wishes rather than his own violates the Constitution's separation of powers."
For their part, some liberal activists have expressed suspicion that the administration might quietly have favored passage of the legislation, since it could sweep the politically difficult decision over a 9/11 trial off the table and offer an explanation of sorts.
Asked Monday whether the administration was secretly rooting for passage of the provision, White House Press Secretary Robert Gibbs said, "No. I think we're going to make a decision on what's in the best interest of this country and what's also constitutional."
Obama could sign the defense bill and attach a so-called signing statement expressing constitutional objections to the Guantanamo provisions. However, he and his aides sharply criticized President George W. Bush for using that mechanism to protest and undercut Congressional acts that he viewed as unconstitutional.
Some civil liberties and human rights activists said they believed the legislation offered some wriggle room for civilian trials because the provisions only restrict some Defense Department funds and might, theoretically, leave open the possibility of using Justice Department money or some other funds for a transfer. However, one senior administration official told POLITICO Wednesday that he considered that a practical impossibility. In addition, it was unclear how Obama could justify such an action given the suggestion of top Congressional Democrats that the language was airtight.
"Let me tell you what the bill actually does???.It prohibits the transfer or release of detainees into the United States or its territories," House Armed Services Committee Chairman Ike Skelton (D-Mo.) said last week. "This is the most thorough and comprehensive set of restrictions ever placed on the transfer and release of detainees. It is substantially stronger than current law."
The provision regarding transfers to other countries does permit such moves if the Secretary of Defense makes certain written certifications or if a court orders a prisoner's release.
"If the administration determines that a detainee can be repatriated and Congress has prohibited that detainee's release (a dubious Constitutional action, but that's another debate), the detainee could seek habeas relief and the government might not contest it and the judge could order the release of the detainee," said Ken Gude of the Center for American Progress, which supports Guantanamo closure.
One government official conceded that possibility, but said it might be very hard for the Defense Secretary to declare that he can "ensure" that a released detainee won't join or rejoin the fight.
"It may be impossible to meet," said the U.S. official, who asked not to be named. "I can't ensure I'll make it home from work when it snows. Perhaps this standard could be met, and we must study it. But I am not at all confident."
Several closure advocates said they were pleased by reports Tuesday that the administration was nearing completion of an executive order giving Guantanamo prisoners held indefinitely the opportunity to appeal for release.
The ACLU's Murphy said she was "heartened" by the news and said it signaled that Obama is willing to battle to preserve his rights to make decisions about detainees. "I do think he's laid the ground work for a major fight next year," she said.
Remes also noted that the restrictions, which he called "obnoxious," only run through the end of the fiscal year next September. However, he said the review system the administration is considering and the habeas process which works through the courts are both severely flawed since in neither case can a detainee be assured of release, even if he prevails.
"What does any of it matter unless the administration has to release people when it finds, or a court finds, that the detention is unlawful?" Remes asked.
In his comments Wednesday, Obama suggested that having a fair process to deal with detainees was important to perceptions of the U.S. and to its success in the terror fight.
"The more people are reminded of what makes America special, the fact that we stand for something beyond just our economic power or our military might, but we have these core ideals that we observe even when it's hard, that's one of our most powerful weapons, and I want to make sure that we don't lose that weapon in what is a serious struggle," the president said.
Manu Raju and Jen DiMascio contributed reporting to this story.